{"id":488,"date":"2019-02-28T15:57:39","date_gmt":"2019-02-28T15:57:39","guid":{"rendered":""},"modified":"2019-06-11T10:30:55","modified_gmt":"2019-06-11T10:30:55","slug":"right-to-counsel-history-2982","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/criminal-law\/right-to-counsel-history-2982.php","title":{"rendered":"Right to Assistance of Counsel | History and Analysis"},"content":{"rendered":"

In 1791, the United States ratified the Bill of Rights after declaring their independence from Great Britain. The purpose of the Bill of Rights<\/a>, the first Ten Amendments to the U.S Constitution, were to protect the freedom and liberties of individuals from being impeded upon by the government. The Sixth Amendment<\/a> reads, \u201cIn all criminal prosecutions, the accused shall enjoy the right\u2026to have the Assistance of Counsel for his defense.\u201d[1]<\/a> The lack of direction and ambiguity of this \u201cRight to Assistance of Counsel\u201d has required the need of the Supreme Court to interpret the procedural application of this fundamental right. The Supreme Court has interpreted, through judicial precedence, how the right to counsel is applied today. Historically, at the time of its inception, most defendants appeared before the court pro se. However, when own unique laws were adopted and laws became increasingly complicated, the need for the assistance of counsel subsequently rose. The right to counsel is a fundamental right inherent to the due process of the law for individuals charged with crimes.[2]<\/a><\/p>\n

The Right to
\nCounsel first originated as a deviation or rejection of the English common law
\nprinciple that prohibited defendants accused of criminal conduct to be allowed
\nthe assistance of counsel. Having found this principle to be hypocritical and
\ncontradictory to the inherent freedoms and liberties afforded to individuals,
\nthe Founding Fathers adopted a new principle that defendants in criminal trials
\nshould be guaranteed the right to be represented by an attorney. The right to
\ncounsel has evolved since its inception. The right to the assistance of counsel
\nexplicitly appears in the Sixth Amendment of the U.S Constitution, but its
\nvague reference brought it upon the Courts to determine its applicability.[3]<\/a> <\/p>\n

One of the earlier
\ncases with reference to the assistance of counsel to appear in front of the
\nSupreme Court is Powell v. Alabama, <\/em>287
\nU.S 45 (1932).However, this case concerns
\nthe due process clause of the Fourteenth Amendment. In Powell v. Alabama,<\/em> a group of African American men were accused of
\nraping two white women in Alabama. The group of men were denied adequate
\ncounsel and were hastily put on trial caused by the hostile pressure of the
\nlocal community. The defendants were illiterate and uneducated but were forced
\nto stand trial without adequate counsel. Each defendant was sentenced to death
\nfor the alleged rape with insufficient evidence and an inadequate trial. The
\nSupreme Court ruled that the trial court denied the defendants due process
\nprotected by the Fourteenth Amendment and established a precedent for State
\nresponsibility to provide counsel to defendants accused of capital offenses.
\nThe court held that, \u201cin a capital case, where the defendant is unable to
\nemploy counsel and is incapable adequately of making his own defense because of
\nignorance, feeble mindedness, illiteracy, or the like, it is the duty of the
\ncourt, whether requested or not, to assign counsel for him as a necessary
\nrequisite of due process of law.\u201d [4]<\/strong><\/a><\/em><\/p>\n

The Court also
\nestablished the right of the accused to have sufficient time to advise with
\ncounsel and to prepare a defense. The majority opinion in this case stated that
\nthese rights were fundamental rights guaranteed by the Due Process Clause of
\nthe Fourteenth Amendment.[5]<\/a>
\nThe responsibility for the Government to appoint defendants an attorney is
\nhereby established. However, this right only applied to capital crimes. <\/p>\n

The right to
\ncounsel applied only to defendants faces capital offenses, until 1938 when the
\nSupreme Court would extend the protections of the Sixth Amendment to defendants
\nin federal court. In Johnson v. Zerbst<\/em>,
\n304 U.S 458 (1938), the Court granted the right to counsel to defendants in
\nfederal court and granted the defendant the ability to waive them. The
\ndefendant must waive their right to counsel intelligently.[6]<\/a>
\nThe guidelines of the Supreme Court make it incumbent upon the courts to
\nprotect defendants\u2019 right to counsel; if the defendant wish to waive their
\nrights, the defendant must be competent and aware of the potential consequences
\nof doing so.[7]<\/a><\/p>\n

In Gideon v. Wainwright, <\/em>372 U.S 335
\n(1963), the Supreme Court extended the Government requisite to appoint
\nassistance to counsel to all felony defendants, including those tried in State
\nCourt. Clarence Gideon was accused of breaking and entering in the state of
\nFlorida. Upon entering the Court room, Gideon expressed that he wanted a lawyer
\nand was unable to afford one. Gideon requested that the Court appoint him
\ncounsel to assist in his defense. The judge denied his request citing a Florida
\nstatute that only guaranteed defendants the right to counsel if they are facing
\na capital offense. Gideon was subsequently found guilty and sentenced to five
\nyears in prison. Upon hearing the case, the Supreme Court ruled that \u201cthe right
\nof an indigent defendant in a criminal trial to have the assistance of counsel
\nis a fundamental right essential to a fair trial, and petitioner’s trial and
\nconviction without the assistance of counsel violated the Fourteenth Amendment.\u201d[8]<\/a>This
\ncase overruled the previous precedent set in Betts v. Brady<\/em> that did not require the state to provide counsel to
\nindigent defendants. In his habeas corpus petition to the Supreme Court, Gideon
\nclaimed that the lower courts denied him his right to due process by denying
\nhim the assistance of counsel. <\/p>\n

In the majority
\nopinion of Gideon v. Wainwright<\/em>, the
\nSupreme Court ruled that \u201cin our adversary system of criminal justice, any
\nperson haled into court, who is too poor to hire a lawyer, cannot be assured a
\nfair trial unless counsel is provided for him. This seems to us to be an
\nobvious truth\u2026necessities, not luxuries.\u201d[9]<\/a>
\nOne rationale that motivated the decision of the Supreme Court focused on the
\ncomparison of the State responsibility to present the prosecution of State
\ncrimes, therefore, the State should also bear the responsibility to provide a
\ndefense for those individuals the State wish to prosecute. This decision held
\nfor the first time that it is the State\u2019s responsibility to appoint counsel for
\nfelonious defendants that are incapable of providing counsel for himself. This
\nnew precedent requiring State appointed counsel for felony offenders is
\nincorporated in the Massiah Doctrine and Miranda Rights which emanate from Massiah v. U.S, <\/em>377U.S 201 (1964) and Miranda v. Arizona, <\/em>384 U.S 436 (1966)<\/a>. The two cases begin to
\noutline more clearly the modern application of the right to counsel and the
\nfull scope of protections afforded by the Fifth, Sixth, and Fourteenth
\nAmendments.  <\/p>\n

In Massiah v. U.S<\/em>, the petitioner had been
\nindicted on narcotics charges and during the proceedings Massiah retained a
\nlawyer and was released on bail. Massiah and another defendant were charged for
\nthe same crimes but when his accomplice decided to cooperate with authorities,
\nfederal agents installed a listening device in the vehicle of Massiah\u2019s
\naccomplice. The petitioner argued that the court should not have allowed the
\nevidence seized against Massiah to be admissible due to the unconstitutional methods
\nof collecting it, since Massiah had previously retained an attorney. The Court
\nheld in Massiah v. U.S, <\/em>that the
\npetitioner\u2019s Fifth and Sixth Amendment rights were violated by the use of
\nevidence against him by unconstitutional means of collection incriminating
\nstatements when government agents deliberately elicit the evidence in the
\nabsence of his retained counsel.[10]<\/a>
\nThis ruling carves out a precedent that in circumstances where a defendant has
\ninvoked their right to counsel law enforcement agents are prohibited from
\nattempting to extract evidence from the defendant without their attorney
\npresent. Any evidence collected in such an unconstitutional manner would be
\ninadmissible. The Court also makes it clear that the right to counsel begins
\nconcurrently with initiation of \u201cadversarial proceedings.\u201d[11]<\/a> <\/p>\n

In Brewer v. Williams, <\/em>430
\nU.S 387 (1977)<\/a>, the court reaffirmed the notion that when a defendant
\ninvokes their right to counsel the police are prohibited from attempting to
\nelicit incriminating evidence through interrogations without the presence of
\ncounsel. This precedent is reaffirmed as a result of a case where the police
\nwere transporting a defendant that had expressed his desire for a lawyer and
\nstated several times that he is interested in remaining silent until his
\nattorney is present. During the transportation of the Petitioner, the police
\nofficers gave what has famously been become known as the \u201cGood Christian Burial
\nSpeech.\u201d The court held that statements provided under the provocation of law
\nenforcement officials, after an individual in custody has invoked their right
\nto counsel are inadmissible. The Court also held is it unconstitutional for the
\npolice to use deceptive tactics to influence the defendant into waiving their
\nright to counsel and a response to an inquiry does not necessarily imply the
\ndefendant has knowingly waived such right. Such burden would remain on the
\nprosecution to prove the defendant had intelligently waived such rights.[12]<\/a> <\/p>\n

The Miranda Rights
\nwere a result in a rise of cases in which the defendants that were subjected to
\ncustodial interrogation, a requisite precursor for the right to attorney, had
\nmade incriminating statements without being informed of their rights and were
\nsubsequently charged and convicted with crimes. As a result of Miranda v. Arizona<\/em>, the Court provided
\nexplicit guidelines that law enforcement is responsible to abide by to ensure
\nthe individuals are properly informed of their rights. \u201cAccordingly, we hold
\nthat an individual held for interrogation must be clearly informed that he has
\nthe right to consult with a lawyer and to have the lawyer with him during
\ninterrogation under the system for protecting the privilege we delineate today.
\nAs with the warnings of the right to remain silent and that anything stated can
\nbe used in evidence against him, this warning is an absolute prerequisite to
\ninterrogation.\u201d[13]<\/a>
\nThis ruling combines the Fifth Amendment and Sixth Amendment to protect
\ndefendants during police interrogations by requiring officers to inform
\ndefendants of their rights in conjunction with an overt acknowledgment or
\nexpressed waiver of their rights. <\/p>\n

In 1967, the Supreme
\nCourt would also apply the adult standard to juvenile defendants as well. In In Re Gault<\/em>, 387
\nU.S 1 (1967)<\/a>, the court held that withholding juvenile defendants from
\ncertain constitutional protections was a constitutional violation. The
\npetitioner claimed an Arizona state law was unconstitutional for restricting
\njuvenile defendants of the same due process rights for adults. As a result, the
\ncourt held that \u201cthere is no material difference in this respect between adult
\nand juvenile proceedings of the sort here involved\u2026in such proceedings, the
\nchild and his parents must be advised of their right to be represented by
\ncounsel and, if they are unable to afford counsel, that counsel will be
\nappointed to represent the child.\u201d[14]<\/a> A
\njuvenile delinquent is to be afforded the right to counsel in circumstances
\nwhere the offenders charges result in incarceration. <\/p>\n

The Supreme Court
\nin 1972, citing reasoning In Re Gault,<\/em>
\nextended the right to counsel to all circumstances in which the defendant is
\nfacing possible jail time. The Court held in Argersinger v. Hamlin, <\/em>407 U.S 25 (1972)<\/a>that
\nan indigent defendant is not only entitled to counsel when facing serious
\ncharges but the Sixth and Fourteenth Amendments protect defendants being charged
\nwith misdemeanor crimes with the possibility of a jail sentence. To guarantee
\nfairness and due process, the Court held that states had the responsibility to
\nextend the right to appointed counsel to defendants facing either felony or
\nmisdemeanor charges that involve the possibility to incarceration. The
\nprecedent set forth in Argersinger<\/em>
\nprotects a defendant from being sentenced to prison without the assistance of
\ncounsel once they have invoked such right.[15]<\/a>
\nHowever, as clarified in Scott
\nv. Illinois, <\/em>440 U.S 367 (1979)<\/a>,
\nthe Sixth and Fourteenth Amendments require that no indigent criminal
\ndefendant be sentenced to a term of imprisonment unless the State has afforded
\nhim the right to assistance of appointed counsel in his defense, but do not
\nrequire a state trial court to appoint counsel for a criminal defendant that is
\nnot imminently facing imprisonment.[16]<\/a> <\/p>\n

In the case Strickland v. Washington, <\/em>466 U.S 669
\n(1984), the court clearly outlines the requirements of the right to counsel in
\nterms of the actions and responsibility of attorneys to fulfill requisite
\neffective assistance of counsel. In this case, the court determines a test for
\nthe adequacy and efficacy of the assistance of counsel. \u201cThe proper standard
\nfor judging attorney performance is that of reasonably effective assistance,
\nconsidering all the circumstances. When a convicted defendant complains of the
\nineffectiveness of counsel’s assistance, the defendant must show that counsel’s
\nrepresentation fell below an objective standard of reasonableness.\u201d[17]<\/a> To substantiate a defendant\u2019s ineffective
\ncounsel claim, the Court must weigh the impact of the totality of the
\ncircumstances impacted by the deficient counsel, as well as any resulting prejudice
\nin the adjudication and disposition of the case in question. The court must
\nfind that in conjunction with ineffective counsel, the disposition of the case
\nwould have resulted in a significantly different result.[18]<\/a>  <\/p>\n

The need for the
\neffective assistance of counsel is highlighted by one of the most recent cases
\nto be argued in the Supreme Court. In the case of Buck v. Davis, <\/em>580 U.S __ (2017)<\/a>,
\nthe Supreme Court held the Mr. Buck\u2019s attorney failed to meet an objective
\nstandard of efficient counsel by allowing evidence to be introduced against his
\nclient that resulted from expert-witness testimony implicating Mr. Buck\u2019s race
\nto establish a death penalty conviction. The Court overwhelming agreed that the
\ndefendant was denied effective assistance of counsel and the introduction of
\nthe defendant\u2019s race was inherently prejudice to the outcome of the trial. By
\nallowing such testimony to be admitted, Mr. Buck\u2019s counsel failed to provide
\nadequate legal assistance as set forth in Strickland<\/em>.[19]<\/a><\/p>\n

There has been an
\nincreasingly support for expanding the right to counsel for all criminal
\nproceedings. The main proponents of this expansion argue that the reasoning of
\nthe courts in previous right to counsel issues has expressed the intent to
\nprotect the layman without an extensive knowledge of the law from being
\nwrongfully prosecuted. The consequences of prosecuting a defendant without the
\nfull awareness and comprehension of his crimes would not allow him the full
\nright to defend himself against his accusers. As a result, the previous courts
\nhave broadened the application of the right to counsel to conform with the
\nevolution of the laws. As misdemeanor laws and the court proceedings are
\nbecoming more and more complicated, there are lawyers and law experts that are
\nproposing an extension of the right to counsel for all criminal cases. They warn
\nagainst the unintended or collateral consequences that result from pleading
\nguilty to a misdemeanor to avoid the complicated and untimely process of pro se
\nrepresentation.[20]<\/a><\/p>\n

Opponents to
\nexpanding the rights of counsel often cite two critiques. \u201cFirst, as with every
\nprevious proposal to expand the scope of the right to court-appointed counsel,
\nissues of cost are in the fore. Such cost-based arguments have been made
\nagainst every expansion of the right to counsel. Second, it is widely
\nacknowledged that the current system of indigent defense representation fails
\nto deliver effective representation to those facing criminal charges, even in
\nserious crimes.\u201d[21]<\/a>
\nHowever, supporters of the notion to extend the rights of counsel are quick to
\npoint out that many states already provide a more comprehensive right to
\ncounsel than the bare bones federal constitutional requirement and therefore,
\nthe cost or management of such an expenditure would be feasible to endure.[22]<\/a>
\nTo address the concerns that extending the right to counsel to all criminal
\ncases would overwhelm the current justice system of public defendants and court
\nattorneys, advocates explain that to mitigate such congestion and to protect
\nthe defendants constitutional right to an attorney lawmakers may reclassify certain
\nconduct out of the criminal jurisdiction.[23]<\/a>
\nThis is evident recently in New York. In an effort to alleviate the exorbitant
\namount of traffic within the New York City Court, the mayor signed a bill that
\nwould reclassify some lower-level crimes to divert defendants from an inundated
\ncriminal court system.[24]<\/a>
\nSome law experts argue that the current state of indigent defense
\nrepresentation is dysfunction and fails to assure adequate assistance for
\ndefendants. \u201cProfessor Erica Hashimoto has argued that states should creatively
\nand pragmatically reduce the number of cases in which counsel must be appointed
\nin order to save the system\u2019s resources for those cases where counsel is most
\nneeded and useful.\u201d[25]<\/a><\/p>\n

Sources:<\/h2>\n

1. U.S Const. Amend VI <\/p>\n

2. III, Edmin
\nMeese, Matthew Spalding, David Forte, and David Forte Matthew Spalding.
\n“The Heritage Guide to The Constitution.” Guide to the
\nConstitution<\/em>. N.p., 2017. Web. <http:\/\/www.heritage.org\/constitution#!\/amendments\/6\/essays\/158\/right-to-counsel-clause<\/a>>. <\/p>\n

3. “Liberty versus Tyranny.” Sixth Amendment Center<\/em>.
\nN.p., n.d. Web. <http:\/\/sixthamendment.org\/the-right-to-counsel\/history-of-the-right-to-counsel\/liberty-versus-tyranny\/<\/a>>.<\/p>\n

4. Powell v. Alabama, <\/em>287 U.S 71 (1932)<\/p>\n

5. Johnson v. Zerbst<\/em>, 304 U.S 458 (1938)<\/p>\n

6.
\nGideon v. Wainwright,<\/em> 372 U.S 344 (1963)<\/p>\n

7. Massiah
\nv. United States, <\/em>377U.S 201
\n(1964)<\/p>\n

8. Miranda
\nv. Arizona, <\/em>384 U.S 436 (1966)<\/p>\n

9. Brewer
\nv. Williams, <\/em>430 U.S 387 (1977)<\/p>\n

10. In
\nRe Gault<\/em>, 387 U.S 1 (1967)<\/p>\n

11. Argersinger
\nv. Hamlin, <\/em>407 U.S 25 (1972)<\/p>\n

12. Scott
\nv. Illinois, <\/em>440 U.S 367 (1979)<\/p>\n

13. Strickland
\nv. Washington, <\/em>466 U.S 669 (1984)<\/p>\n

14. Alabama
\nv. Shelton, <\/em>535 U.S 654 (2002)<\/p>\n

15. Buck
\nv. Davis, <\/em>580 U.S __ (2017)<\/p>\n

16. John D. King, Beyond “Life and
\nLiberty”: The Evolving Right to Counsel, <\/em>48 Harvard Civil Rights L.
\nRev. 39-45 (2013).<\/p>\n

17. Goodman, J. David. “New York City
\nIs Set to Adopt New Approach on Policing Minor Offenses.” The New York
\nTimes<\/em>. The New York Times, 20 Jan. 2016. Web. <https:\/\/www.nytimes.com\/2016\/01\/21\/nyregion\/new-york-council-to-consider-bills-altering-how-police-handle-minor-offenses.html?_r=0<\/a>>.
\n<\/p>\n

\n

[1]<\/a> Amendment VI of U.S Constitution <\/p>\n

[2]<\/a> Powell v\/ Alabama, <\/em>287
\nU.S 45 (1932)<\/p>\n

[3]<\/a> III, Edmin Meese, Matthew Spalding, David Forte, and David Forte
\nMatthew Spalding. “The Heritage Guide to The Constitution.” Guide
\nto the Constitution<\/em>. 2017. Web.<\/p>\n

[4]<\/a> Powell v. Alabama, 287 <\/em>U.S
\n71 (1932)<\/p>\n

[5]<\/a> Powell
\nv. Alabama, <\/em>287 U.S 71 (1932)<\/a><\/p>\n

[6]<\/a> Johnson v. Zerbst<\/em>, 304 U.S
\n458 (1938)<\/p>\n

[7]<\/a> Johnson
\nv. Zerbst<\/em>, 304 U.S 458 (1938)<\/a><\/p>\n

[8]<\/a> Gideon
\nv. Wainwright,<\/em> 372 U.S 335 (1963)<\/a><\/p>\n

[9]<\/a> Gideon
\nv. Wainwright,<\/em> 372 U.S 344 (1963)<\/a><\/p>\n

[10]<\/a> Massiah
\nv. United States, <\/em>377 U.S 204 (1964)<\/a><\/p>\n

[11]<\/a> Massiah v. United States, <\/em>377
\nU.S 201 (1964)<\/p>\n

[12]<\/a> Johnson v. Zerbst<\/em>, 304
\nU.S 458 (1938), Brewer v. Williams, <\/em>430
\nU.S 387 (1977)<\/p>\n

[13]<\/a> Miranda v. Arizona, <\/em>384
\nU.S 471 (1966)<\/p>\n

[14]<\/a> In Re Gault,<\/em> 387 U.S
\n36-40 (1967)<\/p>\n

[15]<\/a> Argersinger v. Hamlin, <\/em>407
\nU.S 25 (1972)<\/p>\n

[16]<\/a> Scott v. Illinois, <\/em>440
\nU.S 370 (1979)<\/p>\n

[17]<\/a> Strickland v. Washington, <\/em>466
\nU.S 687 (1984)<\/p>\n

[18]<\/a> Strickland v. Washington, <\/em>466
\nU.S 687 (1984)<\/p>\n

[19]<\/a> Buck v. Davis, <\/em>580 U.S __
\n(2017)<\/p>\n

[20]<\/a> John D. King, Beyond “Life and Liberty”: The Evolving
\nRight to Counsel, <\/em>48 Harvard Civil Rights L. Rev. 1-10 (2013).<\/p>\n

[21]<\/a> John D. King, Beyond “Life and
\nLiberty”: The Evolving Right to Counsel, <\/em>48 Harvard Civil Rights L.
\nRev. 39 (2013).<\/a><\/p>\n

[22]<\/a> John D. King, Beyond “Life and Liberty”: The Evolving
\nRight to Counsel,<\/em> 48 Harvard Civil Rights L. Rev. 40 (2013).<\/p>\n

[23]<\/a> John D. King, Beyond “Life and
\nLiberty”: The Evolving Right to Counsel,<\/em> 48 Harvard Civil Rights L.
\nRev. 41 (2013).<\/a><\/p>\n

[24]<\/a> Goodman, J. David. “New York City Is Set to Adopt New Approach
\non Policing Minor Offenses.” The New York Times<\/em>. The New York
\nTimes, 20 Jan. 2016. Web. <\/p>\n

[25]<\/a> John D. King, Beyond “Life and Liberty”: The Evolving
\nRight to Counsel,<\/em> 48 Harvard Civil Rights L. Rev. 43 (2013).<\/p>\n","protected":false},"excerpt":{"rendered":"

The need for the effective assistance of counsel is highlighted by one of the most recent cases to be argued in the Supreme Court.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39],"tags":[84],"class_list":["post-488","post","type-post","status-publish","format-standard","hentry","category-free-law-essayscriminal-law","tag-us-law"],"yoast_head":"\nRight to Assistance of Counsel | History and Analysis | LawTeacher.net<\/title>\n<meta name=\"description\" content=\"The need for the effective assistance of counsel is highlighted by one of the most recent cases to be argued in the Supreme Court.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.lawteacher.net\/free-law-essays\/criminal-law\/right-to-counsel-history-2982.php\" 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