Right to Counsel Clause

The 6th Amendment Right to Counsel Clause guarantees that if you are ever charged with a crime, you are entitled to the assistance of a lawyer, or "counsel." It is also referred to as the "assistance of counsel clause." The Courts have determined that this clause means you can hire your own attorney if you have the means, or that you must have one appointed by the government and paid for by the government, if you do not have personal means to hire an attorney. The Right to Counsel Clause also gives you the right to represent yourself in court if you want.

The Right to Counsel Clause reads like this:

"In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence."

Purpose of the Right to Counsel Clause

The Right to Counsel Clause is considered by some to be the most important right that is protected by the 6th Amendment. The main purpose of the entire 6th Amendment is to protect the rights of a person who is accused of a crime by the government. If a person is accused, he must be able to defend himself before the court of jurisdiction. Since legal matters are often confusing and foreign to the average person, most people are not prepared to adequately defend themselves in court. Therefore, the Supreme Court decided that people must be allowed to have an experienced attorney to advise them and represent them in legal matters.

In a famous Supreme Court case called Powell vs. Alabama, in 1932, Justice George Sutherland wrote this very meaningful statement about the importance of the Right to Counsel Clause:

Supreme Court Justice
George Sutherland
Source: The Collection of the Supreme Court of the United States (Artist: Nicholas R. Brewer)

"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. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crimes, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Most observers believe that the Founding Fathers did not originally intend that the Right to Counsel Clause meant that people who could not afford an attorney must have one appointed for them and paid at government expense. Instead, the Founding Fathers meant that if someone could afford to hire a private attorney, he could not be barred by law from doing so.

This is a very different interpretation of the 6th Amendment Right to Counsel Clause than the one generally adhered to by the courts today. It wasn't until 1932 that the Courts began to find a right to have the government appoint a lawyer for a criminal defendant in the Right to Counsel Clause.

History of the Right to Counsel Clause

The roots of all American laws are found in English law. In England, people who were charged with felonies had no right to hire a private attorney, though it was allowed sometimes in special circumstances. After the Glorious Revolution in 1688, Parliament passed a law allowing people accused of treason the right to be represented by an attorney at trial, but this right did not extend to any other classes of crime. All the way up until 1836, with the passage of the Prisoners' Counsel Act, this right was denied to people charged with nearly all serious crimes in England.

The early American colonies generally brought English law with them, so most colonies also barred serious criminal defendants from obtaining a lawyer. This practice varied from colony to colony with some colonies appointing lawyers in some circumstances. Sometimes people were represented by an outside attorney, but it was done so freely by attorneys as an act of good will, for trial experience and for personal publicity. In some cases, these attorneys were paid at the public's expense.

By the time of the Revolutionary War, most of the educated class believed that a person should have the right to hire an outside attorney or to even represent himself at trial, if he chose to do so and had the financial means to do so. Representing oneself at trial was very common in these days. Hiring an outside attorney to represent oneself was more rare and did not come into prevalence until the first half of the 1800's.

Many Americans were dissatisfied with the United States Constitution as it was originally written, believing it did not adequately safeguard basic individual rights. Consequently, a movement to add amendments to the Constitution was successful in getting a Bill of Rights added to it. A Bill of Rights is a list of rights the government cannot interfere with.

James Madison proposed twenty amendments to the US Constitution on June 8, 1789 during the first session of the First Congress. These amendments were later debated, altered and whittled down to ten amendments, which were ratified by the States. These first ten amendments became law on December 15, 1791, and became known as "The Bill of Rights." You can read more about the purpose of the Bill of Rights here.

The Right to Counsel Clause in everyday life

People are allowed to hire an attorney if they want one and can afford to do so. If they cannot afford their own attorney, the court must appoint an attorney for them. The court appointed attorney must be in good standing with his local bar association, the organization that accredits attorneys, must give his undivided loyalty and attention to the defendant and must make a good faith effort to assist the defendant. People do not have the right to choose their own court appointed attorney. This right is left to the court.

If an attorney is court appointed and the defendant has some means, the court may require the defendant to pay a part of the government's costs. Attorneys must be acquired or appointed in all cases where an incarceration of any length of time is the actual punishment received, no matter how insignificant the crime. If incarceration is a possible punishment, but not the actual punishment given, then an attorney is not required.

The Right to Counsel Clause takes effect the moment the government initiates adversarial criminal proceedings such as when formal charges are filed. The Right to Counsel Clause also applies during any critical part of the criminal trial procedure, such as sentencing, jury selection, participation in a criminal lineup or preliminary hearings.

There are some parts of the criminal litigation proceedings that do not allow the presence of counsel. For example, scientific analysis of blood samples, hair, fingerprints, clothing and handwriting and voice samples do not require the defendant's attorney to be present at the time of analysis. The use of this evidence in court would require the presence of the defendant's attorney, though.

The Supreme Court has determined that the Right to Counsel Clause guarantees not only the right to have an attorney in a criminal proceeding, but also to have an effective attorney. This doesn't mean that the attorney has to be perfect, but that he must adequately ensure that the defendant receives a fair trial. Courts can replace attorneys if they believe it is in the best interest of the defendant. Some reasons that a court may conclude that an attorney is ineffective include lack of knowledge of judicial and legal proceedings, conflicts of interest that prevent the attorney from being fully loyal to the interests of the defendant or a breakdown of communication between the defendant and his lawyer.

Criminal defendants can waive their right to have an attorney in some cases if they are believed to be competent enough to understand what denying the right to counsel means. If a person is not knowledgeable enough to understand what giving up this right means, for example in the case of a minor or a mentally handicapped person, the court can deny them the right to refuse counsel and can appoint them an attorney anyway.

The Right to Counsel Clause -
Representing oneself in court

If a person chooses to deny counsel and represent himself in court, he must be informed that defending himself is not merely a matter of explaining what happened. He must also have some knowledge of court procedures, the ability to adequately examine and cross-examine witnesses and communicate his side of the story efficiently and effectively.

When a person takes advantage of the Right to Trial Clause guarantee to represent oneself in court, he is said to be representing himself pro se. Pro se is a Latin term meaning "for self." If a person proceeds pro se in a court case, it is usually because either he is a lawyer himself, he believes he can adequately navigate the court system and represent himself well, or because he is for some reason unable to obtain a lawyer. People rarely proceed in a court case pro se because they cannot afford to hire an attorney, since most criminal cases allow a court appointed attorney.

The Right to Counsel Clause -
Original understanding vs. current understanding

It is generally understood that the Founding Fathers intended this clause to mean that if a person wanted to hire an outside attorney and they were able to afford it, they were to be allowed to do so. The Founding Fathers did not necessarily intend that the right meant that anyone who could not afford an attorney must be given one at the court's expense.

In colonial days, it was common for people to represent themselves in court and this was the understanding that the Founders had of court procedures. When they passed the 6th Amendment and the Right to Trial Clause, they merely meant to ensure the right of people to hire an outside attorney if they chose to do so and could afford it.

This understanding was generally held until 1932 in a case called Powell vs. Alabama, in which a right to counsel was determined to exist in the 6th Amendment whether or not one could afford it. Through a series of rulings, the right became more and more established in American law, until today, when it is considered to be a universal right anytime someone faces serious criminal charges.

As with all of the Amendments in the Bill of Rights, the 6th Amendment applied originally to the Federal government only and not to the state governments. After the Civil War and the addition of the 14th Amendment to the Constitution, the Supreme Court gradually applied all of the provisions of the Bill of Rights, including the Right to Counsel Clause, against the states as well. The Court did this through its interpretation of the 14th Amendment's Due Process Clause, which says that the states must give equal rights to all people. You can read the 14th Amendment here.

You can read about several interesting and significant Sixth Amendment Court Cases dealing with the Right to Counsel clause here.

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