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The Right to an Attorney

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The right to an attorney in criminal proceedings is a foundational aspect of the criminal justice system and a right guaranteed by the U.S. Constitution. The right to counsel ensures that any criminal defendant has counsel of his or her choosing, or that counsel is appointed where a defendant cannot afford counsel.

This article discusses the right to counsel under the U.S. Constitution, what the right to counsel means, and consequences for failing to provide a criminal defendant access to counsel.

The Sixth Amendment Right to Counsel

The Sixth Amendment of the United States’ Constitution provides that in “all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury…and to have the Assistance of Counsel in his defense.”

Originally, very few if any states recognized that the Sixth Amendment applied to state criminal proceedings. The right to counsel originally only applied in federal prosecutions. It was not until 1963 that the Supreme Court definitively applied the Sixth Amendment to the states in felony cases.

In Gideon v. Wainwright, the Supreme Court held that the Sixth Amendment and its guarantees applies to criminal defendants being prosecuted in state courts vis-à-vis the Fourteenth Amendment. Because the Sixth Amendment’s right to counsel is a fundamental right and applies to the states through the incorporation doctrine of the Fourteenth Amendment, states were required to provide counsel for felony defendants unless the defendant waived that right.

The Supreme Court further extended the right to counsel to misdemeanor cases involving indigent defendants. In Scott v. Illinois, the Supreme Court held that no indigent criminal can be sentenced to imprisonment unless he or she was given the right to counsel. The Supreme Court held in In Re Gault in 1967 that the protections of the Sixth Amendment and Fourteenth Amendment due process rights apply to minors taken into custody and charged with a crime. The Court found that a minor could not be tried for a crime without notification to the parents of the minor’s arrest, notice to the parents that the minor has a right to counsel, and the opportunity for the minor to confront and cross-examine his accusers.

Criminal defendants, similar to parties in civil lawsuits, have the right to waive the right to counsel and represent themselves, which is called appearing “pro se” or “in pro per.”

When does the Right to Counsel Begin?

There are differing court opinions about when exactly the right to counsel takes effect. The Sixth Amendment right to counsel is part of the Miranda warnings first established in the case Miranda v. Arizona that must be given to a suspect taken into custody for a formal interrogation or placed under arrest. At the point where someone is formally interrogated or arrested, the suspect must be told he or she has a right to counsel and can invoke the right to counsel by clearly and explicitly stating that he or she wants an attorney present.

Generally, the Sixth Amendment right to counsel begins as soon as criminal proceedings against the defendant commence. In 1986, the Supreme Court stated in Moran v. Burbine that the Sixth Amendment attaches during the “first formal charging proceeding” or initial proceeding. Initial proceedings, according to the Supreme Court in Brewer v. Williams, include any “formal charge, preliminary hearing, indictment, information, or arraignment.”

The Court also discussed the fact that the defendant can waive his or her right to counsel. Quoting Miranda v. Arizona, the Court stated that a waiver of counsel is valid when it is made “voluntarily, knowingly and intelligently.”

Right to Effective Counsel

The right to counsel means more than simply the right of a defendant to have an attorney present during criminal proceedings. The right to counsel means that a criminal defendant has the right to competent counsel and zealous advocacy on his or her behalf. In McMann v. Richardson, the Supreme Court discussed the idea of the right to effective counsel and noted that in order for the Sixth Amendment to carry any weight, the accused must not be “left to the mercies of incompetent counsel.”

The right to effective counsel is so important, a court may order a new trial on appeal if it finds counsel was incompetent. The test to determine whether a new trial should be ordered due to ineffective counsel was established by the Supreme Court in 1984 in Strickland v. Washington. The Court established a two-prong test and stated counsel is ineffective when (1) an attorney’s performance was inadequate or deficient under the circumstances, and (2) that inadequate performance unfairly prejudiced the defendant such that he or she did not receive a fair trial. If a court finds these two prongs are met, it will throw out a conviction and order a new trial.

The right to counsel also means that a defendant has the right to choose his or her counsel. This right, however, is limited by practical considerations and notions of fairness. If a defendant cannot afford his or her chosen attorney, state courts will appoint a public defender. Federal public defenders are only available to defendants who are indigent and meet certain standards.

Furthermore, if the attorney has a conflict of interest related to the case, the court may replace counsel. In Wheat v. United States, the Supreme Court ruled that the right to counsel is limited in situations where chosen counsel creates a conflict of interest. This is because counsel generally cannot be effective where an attorney’s loyalties are divided by conflicting interests, such as when one attorney represents two co-defendants in the same case.

Because the Sixth Amendment right to counsel is a fundamental due process right, denying a criminal defendant the right to counsel, providing ineffective counsel, or denying the right to choose counsel can result in the reversal of a conviction or a new trial.

Right to Counsel in Civil Proceedings

The Sixth Amendment does not mention anything about the right to counsel in civil proceedings. Thus, there is no constitutional right to counsel in civil cases. However, many state and federal laws provide for counsel in certain civil proceedings such as family law proceedings, involuntary commitments, and cases regarding involuntary medical treatment or vaccinations.

In certain family law cases, the federal government requires any state that receives funding for child abuse prevention and treatment to provide counsel for children in child abuse or neglect cases. Those states that receive funding ensure children are represented either by legal counsel or guardian ad litem. Guardian ad litem is a person appointed by the court to represent the best interests of the child. Guardian ad litem can be a family member, family friend, or someone from an independent organization.

Some states also provide counsel in family law proceedings where the state is seeking to terminate parental rights.

The right to counsel is often provided to people who are involuntarily institutionalized for mental illness or drug or alcohol abuse. People who are held involuntarily for a mental health or drug hearing generally have the right to a hearing to determine whether they can be released.

Finally, some states provide a right to counsel regarding access or consent for medical treatment. In proceedings where a minor seeks to have a medical procedure without his or her parents’ consent, the court may appoint counsel. In cases where a person is the subject of a state order to receive a vaccination against his or her consent, the court will appoint counsel.

Immigration proceedings are considered civil in nature rather than criminal. Thus, the Sixth Amendment right to counsel does not apply in immigration proceedings. The Fifth Amendment has been construed to give those aliens subject to an immigration proceeding the statutory right to counsel at their own expense.

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