Amdt6.7.2.1.1 Right to Have Counsel Appointed: Early Doctrine

Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

By federal statute, an individual tried for a capital crime in a federal court was entitled to appointed counsel, and, by judicial practice, the federal courts came to appoint counsel frequently for indigents charged with noncapital crimes, although it may be assumed that the practice fell short at times of what is now constitutionally required. 1 State constitutions and statutes gradually ensured a defendant the right to appear in state trials with retained counsel, but the states were far less uniform on the existence and scope of a right to appointed counsel. It was in the context of a right to appointed counsel that the Supreme Court began to develop its modern jurisprudence on a constitutional right to counsel generally, first applying procedural due process analysis under the Fourteenth Amendment to state trials, also finding a Sixth Amendment based right to appointed counsel in federal prosecutions, and eventually applying this Sixth Amendment based right to the states.

The development began in Powell v. Alabama, 2 in which the Court set aside the convictions of eight black youths sentenced to death in a hastily carried-out trial without benefit of counsel. Due process, Justice Sutherland said for the Court, always requires the observance of certain fundamental personal rights associated with a hearing, and the right to the aid of counsel is of this fundamental character. This observation was about the right to retain counsel of one’s choice and at one’s expense, and included an eloquent statement of the necessity of counsel. 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.3

The failure to afford the defendants an opportunity to retain counsel violated due process, but the Court acknowledged that as indigents the youths could not have retained counsel. Therefore, the Court concluded, under the circumstances – the ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their livesthe necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. The holding was narrow. The Court stated that in a case in which the defendant faces the death penalty, does not have a lawyer, and is unable to mount his own defense because of intellectual disability, illiteracy, or a similar condition, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law . . . .4

The next step in the expansion came in Johnson v. Zerbst, 5 in which the Court announced an absolute rule requiring appointment of counsel for federal criminal defendants who could not afford to retain a lawyer. The right to assistance of counsel, Justice Black wrote for the Court, is necessary to insure fundamental human rights of life and liberty. Without stopping to distinguish between the right to retain counsel and the right to have counsel provided if the defendant cannot afford to hire one, the Justice quoted Justice Sutherland’s invocation of the necessity of legal counsel for even the intelligent and educated layman and said: The Sixth Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.6 Any waiver, the Court ruled, must be by the intelligent choice of the defendant, will not be presumed from a silent record, and must be determined by the trial court before proceeding in the absence of counsel. 7

An effort to obtain the same rule in the state courts in all criminal proceedings was rebuffed in Betts v. Brady. 8 Justice Roberts for the Court observed that the Sixth Amendment would compel the result only in federal courts but that in state courts the Due Process Clause of the Fourteenth Amendment formulates a concept less rigid and more fluid than those guarantees embodied in the Bill of Rights, although a state denial of a right protected in one of the first eight Amendments might in certain circumstances be a violation of due process. The question was rather whether the constraint laid by the Amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.9 Examining the common-law rules, the English practice, and the state constitutions, laws and practices, the Court concluded that it was the considered judgment of the people, their representatives and their courts that appointment of counsel is not a fundamental right essential to a fair trial. Want of counsel in a particular case might result in a conviction lacking in fundamental fairness and so necessitate the interposition of constitutional restriction upon state practice, but this was not the general rule. 10 Justice Black in dissent argued that the Fourteenth Amendment made the Sixth applicable to the states and required the appointment of counsel, but that even on the Court’s terms counsel was a fundamental right and appointment was required by due process. 11

Footnotes

  1.  Jump to essay-1W. Beaney, The Right to Counsel in American Courts 29-30 (1955).
  2.  Jump to essay-2287 U.S. 45 (1932).
  3.  Jump to essay-3287 U.S. at 68-69.
  4.  Jump to essay-4287 U.S. at 71.
  5.  Jump to essay-5304 U.S. 458 (1938).
  6.  Jump to essay-6304 U.S. at 462, 463.
  7.  Jump to essay-7304 U.S. at 464-65. The standards for a valid waiver were tightened in Walker v. Johnston, 312 U.S. 275 (1941), setting aside a guilty plea made without assistance of counsel, by a ruling requiring that a defendant appearing in court be advised of his right to counsel and asked whether or not he wished to waive the right. See also Von Moltke v. Gillies, 332 U.S. 708 (1948); Carnley v. Cochran, 369 U.S. 506 (1962). A waiver must be knowing, voluntary, and intelligent, but need not be based on a full and complete understanding of all of the consequences. Iowa v. Tovar, 541 U.S. 77 (2004) (holding that warnings by trial judge detailing risks of waiving right to counsel are not constitutionally required before accepting guilty plea from uncounseled defendant).
  8.  Jump to essay-8316 U.S. 455 (1942).
  9.  Jump to essay-9316 U.S. at 461-62, 465.
  10.  Jump to essay-10316 U.S. at 471, 473.
  11.  Jump to essay-11316 U.S. at 474 (joined by Justices Douglas and Murphy).