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Due Process Rights in Criminal Case: The Right To Counsel

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Due Process Rights: The Right to Counsel

             It seems straightforward when you first read it.[1] The Sixth Amendment of the United States Constitution’s Assistance of Counsel Clause provides “In all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.[2]

            As a basic tenet of our adversarial legal system, the Sixth Amendment’s Right to Counsel provision tries to negate any imbalance of power between the legally-knowledgeable prosecution and a defendant who isn’t as well-versed in criminal law.[3] A defense attorney can recalibrate any imbalance by advising the defendant of her rights and explaining what to expect at different stages of the criminal process, as well as investigating facts and presenting a legal defense.

            In one of the most high profile United States Supreme Court cases of the early twentieth century, Powell v. Alabama, the Court outlined the important role the right to counsel plays in providing a defendant a fair trial.[4] In that case, nine African-American men, dubbed the “Scottsboro Boys,” were accused of raping two white women and during their criminal prosecution, they were represented by counsel when arraigned, but no defense attorneys consulted with them or assisted the defendants beyond that. Defense counsel failed to even make a closing argument.[5] The Court found that that the defendants’ constitutional rights were violated based on the Fourteenth Amendment’s Due Process Clause. In the opinion, Justice George Sutherland wrote that the right to counsel is so fundamental and important that the right to a fair trial is meaningless without assistance of counsel.[6]

            In the landmark 1963 decision, Gideon v. Wainwright, the Court ruled that federal and state courts must provide counsel for those indigent defendants who cannot afford to hire their own. The Court reasoned that the guarantee of counsel is so fundamental to a fair trial that it must be applied to the states through the Fourteenth Amendment’s Due Process Clause and a person denied the right to counsel, even if that’s merely a function of inability to pay, violates this right.[7]

A criminal defendant has the right to assistance from a lawyer at almost every important phase of the criminal process, from arrest and initial investigation all the way through an appeal after conviction.[8]

            The right to counsel has been applied in so many critical stages of the criminal process due, in part, to historical reasons. The Constitution’s framers sought to establish a more involved role for counsel than what was prevalent in eighteenth century England.[9] At that time, English defense lawyers merely advised clients in “matters of law” and didn’t play an active role in the prosecution.[10] Also, criminal prosecutions are more complex than ever. Early in the history of the American criminal justice system, evidence against the accused was accumulated at the trial itself; pretrial proceedings were inconsequential. Now, the bulk of the evidence against the defendant is gathered before a trial starts, so the results of pretrial proceedings can potentially “settle the accused's fate . . . reducing the trial itself to a mere formality.”[11] In this environment, delaying the right to counsel until trial could render the right to counsel almost useless.

            However, the right to counsel only attaches when there is an initiation of adversarial proceedings. There is no constitutional right to counsel merely because someone is being investigated.[12] An arrest is the commencement of an adversarial proceeding and thus the right to counsel does attach during an arrest and at post-arrest hearings.

            In Rothgery v. Gillespie County, Texas police executed a warrantless arrest of suspected felon Walter Rothgery for illegal possession of a firearm.[13] While at Gillespie County jail, Rothgery requested counsel, but wasn’t provided any. Rothgery once again insisted upon a right to appointed counsel in front of a magistrate judge who read the charges against him. Again, he didn’t receive it. The Court held that the government violated Rothgery’s Sixth Amendment right when it ignored his requests for an attorney.[14]

Note that a person does not need to be in custody or feel coerced to trigger the right to counsel. If she has been indicted and if government officials are trying to obtain information from her, then the right to counsel has attached and she must be provided an attorney upon request. Police cannot deliberately elicit incriminating information from an accused after the right has attached in the absence of counsel unless the defendant waives counsel or initiates the discussion about the case.

            A person can waive his right to counsel by effecting a voluntary and proper waiver,[15] which means that the waiver was made knowingly, voluntarily, and intelligently.[16]  A waiver may fail to be knowing and intelligent if the defendant was unaware of the nature of the charges and possible penalties if convicted, prior to the waiver.[17]

            A defendant whose Sixth Amendment right has been violated does have recourse. Courts are required to suppress statements and testimonial information that were products of the violation, which means that confessions obtained while denying counsel must be excluded.[18] In Massiah v. United States, the defendant, who was indicted on drug charges, retained a lawyer, pled not guilty and was released on bail.[19] While out on bail, Massiah made several incriminating statements in his co-defendant’s car without his lawyer present after police had installed a recording device in the car. The Court reversed Massiah’s conviction and held that the government could not use the defendant’s own incriminating words in the case against him because the right to counsel applies in all critical stages of a prosecution, or any stage where counsel’s absence can adversely impact the accused’s right to a fair trial.[20] This was even assuming the listening device had been installed legally pursuant to a valid warrant. A valid warrant would take care of any Fourth Amendment “search and seizure” issues, but does not set aside the right to counsel that applies after the commencement of an adversarial proceeding.

            The Sixth Amendment’s scope has even widened. In March 2016, the headlines of several legal blogs read, “Supreme Court Hands Down Big Sixth Amendment Right to Counsel Win.”[21] The case the headlined referred to was Luis v. United States, where the Court held that the government cannot seize a person’s lawfully held assets that deny him an opportunity to hire an attorney in a pending criminal case against him, even if there were legal grounds to seize those assets. If the government were able to prevent a suspect access to funds to hire an attorney, the Sixth Amendment right to counsel would be meaningless.[22]

            This case, like the others before it, demonstrates that the Sixth Amendment is broad and important, as our justice system seeks to give a person every opportunity possible to enjoy the assistance of counsel.



[2] U.S. Const. amend. VI.

[3] James Tomcovicz, “The Massiah Right to Exclusion: Constitutional Premises and Doctrinal Implications,” 67 N.C.L. Rev. 751, (1989).

[4] Powell v. Alabama., 287 U.S. 45, (1932).

[6] Supra note 4.

[7] Gideon v. Wainwright, 372 U.S. 335, (1963).

[8] Justin Rand, “Pro Se Paternalism: The Contractual, Practical, and Behavioral Cases for Automatic Reversal,” 163 U. Pa. L. Rev. 283, (2014).

[9] United States v. Wade, 388 U.S. 218, (1967).

[10] Id.

[11] Id.

[12] Montejo v. Louisiana, 556 U.S. 778, (2009).

[14] Rothgery v. Gillespie County, 554 U.S. 191, (2008).

[15] Johnson v. Zerbst, 304 U.S. 458, (1938).

[16] Brewer v. Williams, 430 U.S. 387, (1977).

[17] United States v. Mohawk, 20 F.3d 1480, (1994).

[19] Massiah v. United States, 377 U.S. 201, (1964).

[20] Id.