The Right to Counsel

Courts have interpreted the Sixth Amendment right to counsel as guaranteeing the "effective assistance of counsel" to criminal defendants. The attorney must provide effective assistance regardless of whether the defendant hires them or the government appoints them.

The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant's right to counsel. It requires the "assistance of counsel" for the accused "in all criminal prosecutions." This means a defendant has a constitutional right to an attorney's representation during a criminal proceeding.

Additionally, the U.S. Supreme Court determined in Gideon v. Wainwright (1963) that the government must appoint an attorney to a defendant who cannot afford one. The government will appoint counsel to an indigent defendant once the defendant proves they cannot afford one.

This article discusses the right to counsel in connection with a criminal trial. A suspect, however, has the right to a lawyer at all “critical stages" of the criminal process. In practicality, this means from the arrest through the first appeal after conviction. For instance, criminal suspects can ask for an attorney and remain silent once police begin a custodial interrogation.

Learn more about the constitutional right to counsel below. Additionally, this article covers when this right applies and how attorneys can help defendants.

Sixth Amendment Right to Counsel

The Sixth Amendment guarantees the assistance of counsel to criminal defendants. The right to counsel is a critical component of due process and aims to ensure a fair trial.

The 14th Amendment applies the Sixth Amendment to the states. Thus, a criminal defendant is guaranteed the right to counsel in federal and state criminal proceedings.

Law enforcement tells a criminal suspect of their right to have counsel present when an officer reads them their Miranda rights. These rights come from the Supreme Court case Miranda v. Arizona (1966). The Miranda rights apprise the suspect of the following:

  • They have the right to remain silent (Fifth Amendment).
  • They have the right to an attorney (Sixth Amendment).
  • If they cannot afford an attorney, the government will arrange the appointment of counsel.

Only criminal defendants have a constitutional right to counsel. The right applies to all felonies and misdemeanors, the Supreme Court ruled in Argersinger v. Hamlin (1972). Parties to a civil case do not have a right to an attorney.

When the Right to Counsel Attaches

It is critical to understand when the Sixth Amendment protections attach to a criminal suspect. In Brewer v. Williams (1977), the Supreme Court held that the right to counsel attaches when judicial proceedings begin. Judicial proceedings typically start when the government imposes criminal charges on a suspect. The government often charges a defendant at an arraignment or preliminary hearing.

The right to counsel applies to all “critical stages" of a criminal case once the government charges the defendant. This means the defendant has a right to counsel from the moment the government charges them. Following United States v. Wade (1967), the right extends through the criminal trial and during an appeal. As the Supreme Court noted in Moran v. Burbine (1986), the right attaches when the “government's role shifts from investigation to accusation."

Waiving the Right to Counsel

A criminal defendant may choose to proceed without counsel. This decision is known as a waiver of their right to counsel. A criminal defendant must voluntarily waive the right. Moreover, they must knowingly make their decision for the waiver to be effective. Following Johnson v. Zerbst (1938), courts are required to inquire into a waiver of the right.

How Does an Attorney Assist a Defendant in a Criminal Case?

The defense attorney's role is of paramount importance in a criminal case. An attorney's specific duties vary depending on the nature of the charges and the case. Generally, the critical responsibilities of any criminal defense lawyer include:

  • Zealous advocacy for their client
  • Advising the defendant of their rights
  • Explaining what to expect at different stages of the criminal process
  • Ensuring the defendant's constitutional rights are not violated
  • Negotiating a plea bargain with the government on the defendant's behalf

A criminal defense attorney also investigates their client's case. This includes investigating facts and evidence. This allows the attorney to present legal defenses.

Effective Assistance of Counsel

Courts use a two-part test to determine whether an attorney effectively assisted their client. This test comes from the 1984 Supreme Court decision in Strickland v. Washington. An attorney's questionable strategic choices do not usually cause a court to throw out a conviction. However, if it's clear that the attorney's incompetence affected the case's outcome, the court may overturn a conviction.

This is especially troublesome for those represented by public defenders. Public defenders are often competent, experienced, and dedicated. However, they typically have massive caseloads and limited resources. Thus, at times, properly preparing for a case may be difficult. This incentivizes public defenders to push for plea bargains instead of taking each case to trial. Still, appointed lawyers are held to the same professional standards as high-priced attorneys.

Learn More About Your Right to Counsel From an Attorney

Your right to counsel starts once custodial interrogation begins. Custody, however, has different definitions depending on the circumstances. If law enforcement has charged you with a crime, contact an experienced criminal defense attorney to discuss your case.

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