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."
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:
"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.
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.
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.
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.
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 about several interesting and significant Sixth Amendment
Court Cases dealing with the Right to Counsel clause here.
Return to 6th Amendment
Other 6th Amendment clauses:
Speedy
Trial Clause
Public
Trial Clause
Right
to Trial by Jury Clause
Arraignment Clause
Confrontation Clause
Compulsory Process Clause
Amendments:
Preamble
to the Bill of Rights
Learn
about the 1st Amendment here.
Learn
about the 2nd Amendment here.
Learn
about the 3rd Amendment here.
Learn
about the 4th Amendment here.
Learn
about the 5th Amendment here.
Learn
about the 6th Amendment here.
Learn
about the 7th Amendment here.
Learn
about the 8th Amendment here.
Learn
about the 9th Amendment here.
Learn
about the 10th Amendment here.
Read
the Bill of Rights here.
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